Ten reasons why the Citizenship (Amendment) Act, 2019 is unconstitutional | The Leaflet

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Ten reasons why the Citizenship (Amendment) Act, 2019 is unconstitutional | The Leaflet

The religion and country-specific classification in CAA is arbitrary, and in contravention of Article 14 of the Constitution. These classifications leave out persecuted minority groups in the majority religion of the included countries, and also leave out enumerated minority communities belonging to excluded neighbouring countries such as Myanmar and Sri Lanka, which were a part of British India and the larger British Empire, respectively. If the classification were based on degrees of harm, then the Rohingyas of Myanmar ought to be included, as the United Nations had described the Rohingyas as "the most persecuted minority in the world". Similarly, Eelam Tamils have also been subject of enduring persecution in Sri Lanka.
1. Religion specific classification: There is nothing, including no data, to show that the religious persecution against the concerned minorities in the given countries, that is, Bangladesh, Pakistan and Afghanistan, is significant enough to provide for an intelligible differentia to classify these minorities as separate from other persecuted minority sects among Muslims, like Ahmadis, for the stated purpose of protection against persecution.
2. Country specific classification: If the criteria were of neighbouring countries, the exclusion of Sri Lanka and Myanmar is arbitrary and unreasonable, since these countries have manifest long-running persecution of Tamils and Rohingyas respectively, as elucidated above. If the criteria were people of undivided Indian origin, then only Pakistan, Bangladesh, and Myanmar could be included as these countries constituted undivided India prior to 1947. However, by including Afghanistan and excluding Myanmar from the list, it becomes clear that the criteria is other than the people of undivided Indian origin.Thus, the purported intelligible differentia sought to be made in the CAA, that is, religion and country of origin, have no nexus with the object sought to be achieved, that is, reprieve from persecution for the minority communities in the aforesaid countries.
Since religion constitutes an integral facet of an individual's personal autonomy and thus is an immutable marker of identity, any classification based on religion and place of origin shall be deemed as an impermissible classification, and shall fall foul of the Constitution of India.
The CAA modifies the scope of citizenship as envisioned in the Constitution in a discriminatory manner by introducing the concept of citizenship based on religious identity alone, though purportedly classifying on the basis of religion as well as persecution of such enumerated religious minorities in specified countries, thus violating the principle of secularism, equality and justice, which constitute the basic structure of the Constitution of India.
The violation of the basic feature of secularism, which pervades the body and the soul of the Constitution, engenders the violation of a catena of fundamental rights. Notably, the ingredients of secularism is contained in various guarantees under Part III of the Constitution in so far as the part guarantees an individual equal treatment by law irrespective of his/her religion (Article 14), neutrality of State with respect to religion (Articles 15 and 16), freedom of religion (Articles 25, 26, 27 and 28) and enhanced protection to minorities (Articles 29 and 30). Thus, such violations of a catena of fundamental rights makes the violating law ultra vires.Also read: Lost in Space: Finding the voice of the judiciary in the CAA Narrative
There is no basis for reducing the eligibility criterion for application for citizenship for naturalisation to six years for the category of persons classified by the CAA from the normally applicable eleven years for foreigners staying in the country legitimately. Hence the same is discriminatory as well as arbitrary, and falls foul of Article 14 of the Constitution.
The choice of cut-off date is arbitrary and hence violative of the Constitution. Assuming that the Parliament has the power to set the cut-off date for considering certain immigrants as citizens as December 31, 2014, the choice of the cut-off date must bear rational nexus with the stated object of the Act. There is no evidence to indicate that the migration that took place up to December 31, 2014 was based on religious persecution alone, or even primarily that.
The Act confers unlimited, unguided discretionary powers on the executive to grant citizenship, and is thus violative of Article 14 of the Constitution. The defining criteria on the basis of which the person will not be treated as illegal immigrant must be found in the statute itself, and is not to be left for the rules, regulations and notifications to elucidate the same, as it amounts to excessive delegation of legislative power, thus violating the basic feature of separation of powers. The CAA is silent on the same, including on the requirement of proof of persecution of the category of persons delineated in the CAA, for them to be granted citizenship. This is in contravention of the provisions of the Constitution and is hence void.Also read: The Debates over CAA